State v. Harvey , 2022 Ohio 2424 ( 2022 )

[Cite as State v. Harvey, 2022-Ohio-2424.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29307
:
v. : Trial Court Case Nos. 20CRB594-A
: 20CRB594-B
MICHAELA C. HARVEY :
: (Criminal Appeal from
Defendant-Appellant : Municipal Court)
:
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OPINION
Rendered on the 15th day of July, 2022.
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CHRISTINE L. BURK, Atty. Reg. No. 0050559, Assistant Prosecuting Attorney, City of
Miamisburg Prosecutor’s Office, 10 North First Street, Miamisburg, Ohio 45342
Attorney for Plaintiff-Appellee
TRAVIS L. KANE, Atty. Reg. No. 0088191, 130 West Second Street, Suite 460, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
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EPLEY, J.
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{¶ 1} Defendant-Appellant Michaela C. Harvey appeals from her conviction after
she was found guilty of two counts of child endangering, both first-degree misdemeanors,
in violation of R.C. 2919.22(A). For the reasons that follow, the judgment of the trial court
will be reversed.
I. Facts and Procedural History
{¶ 2} On May 3, 2020, Erin Harvey (“Erin”) received a series of phone calls from
her daughter, Michaela Harvey (“Harvey”) in various stages of distress. According to trial
testimony, each call became more concerning and intense as Harvey’s mental state
degraded. Harvey told her mother that “she was going to throw the kids out the window
and at some point, threatened * * * to kill herself.” Trial Tr. at 14. Harvey’s 11-month-old
twins could be heard crying in the background. As a result of the distressing phone calls,
Erin contacted the Miamisburg police, who later that morning went to Harvey’s apartment
to check on her well-being. No one answered the door; the officers entered the unlocked
residence and found that the unit was “dirty and in disarray.”
{¶ 3} Erin testified that after the phone calls, Harvey brought the children over to
her house in Wilmington and that Harvey was “very, very upset, screaming and
hysterical.” Trial Tr. at 16. Harvey eventually left the children with her mother for several
hours but returned around 10 p.m. to retrieve the twins. Erin stated that she allowed her
daughter to take the children at that time because Harvey had adequately calmed down
and because she did not believe she could legally withhold the children from their mother.
{¶ 4} The following day, Detective Sergeant Jeff Muncy was reviewing the
weekend cases, and after coming across Harvey’s, he “was concerned that no one had
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actually laid eyes on the kids, so it was [his] goal * * * to make sure they were, in fact,
okay.” Trial Tr. at 44. Sgt. Muncy, accompanied by a caseworker from children services,
went to Harvey’s apartment on May 4, and this time she and her children were present.
Sgt. Muncy testified that once inside, he found the apartment in “disarray,” with diapers
and clothing on the floor. He stated that the debris was particularly troubling because the
children were crawling all over the floor. He also noted that there were dirty dishes in the
kitchen that were “dried and cruddy” and a bong (a marijuana smoking device) was on
the kitchen counter.
{¶ 5} While in the apartment, Sgt. Muncy engaged in conversation with Harvey.
According to Sgt. Muncy’s testimony, Harvey admitted that she had threatened to kill
herself, but would only admit that she “said some not so nice things about the kids.” Trial
Tr. at 55. She also told Sgt. Muncy that she “had a license to smoke marijuana and she
uses it to * * * self-medicate because her kids stress her out.” Trial Tr. at 50.
{¶ 6} Based on the conditions in the apartment and Harvey’s statements, children
services made the decision to remove the children and place them with their grandmother,
Erin. On May 6, 2020, Harvey was charged with two counts of endangering children
related to the incidents on May 3-4. The matter proceeded to a bench trial, which was
held on July 9, 2020. The trial court heard testimony from Harvey, Erin, Sgt. Muncy, and
other Miamisburg officers involved in the investigations, and it considered pictures taken
in the apartment showing the conditions inside. The court took the case under advisement
and issued a guilty verdict on both counts on September 18, 2020. Harvey was sentenced
to 180 days in jail with 174 days suspended and four years of probation. Anger
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management classes, parenting classes, and random drug tests were also ordered.
{¶ 7} Harvey has appealed, raising one assignment of error.
II. Manifest Weight and Sufficiency of the Evidence
{¶ 8} In her sole assignment of error, Harvey argues that her convictions must be
reversed because they were against the manifest weight of the evidence. However, as
the State points out, Harvey makes both manifest weight and sufficiency of the evidence
arguments. We will analyze accordingly.
{¶ 9} Sufficiency is a “term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient
to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). Whether the evidence is sufficient to sustain a verdict is a
question of law. Id.{¶ 10} It is our function, when reviewing the sufficiency of the evidence, to
“examine the evidence admitted at trial to determine whether such evidence, if believed,
would convince the average mind of the defendant’s guilt beyond a reasonable
doubt.” State v. Marshall, 191 Ohio App.3d 444, 2010-Ohio-5160, 946 N.E.2d 762, ¶ 52
(2d Dist.). The relevant inquiry is whether, viewing the evidence in the light most favorable
to the State, any reasonable trier of fact could have found the elements of the crime
proven beyond a reasonable doubt. Id.{¶ 11} “A weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No.
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22581, 2009-Ohio-525, ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, 972 N.E.2d 517, ¶ 19. When an appellate court reviews whether a conviction is
against the manifest weight of the evidence, “[t]he court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of the
witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983).
{¶ 12} Even though sufficiency and manifest weight are separate legal concepts,
manifest weight can subsume sufficiency in conducting the analysis; finding that a
conviction is not against the manifest weight of the evidence necessarily includes a finding
of sufficiency. State v. Freeman, 2d Dist. Greene No. 2020-CA-33, 2021-Ohio-734, ¶ 39.
{¶ 13} As to sufficiency, Harvey was charged and convicted of endangering
children, a violation of R.C. 2919.22(A), which states, in relevant part, that “[n]o person,
who is the parent * * * of a child under eighteen years of age * * * shall create a substantial
risk to the health or safety of the child, by violating a duty of care, protection, or support.”
“Substantial risk” is defined as a “strong possibility, as contrasted with a remote or
significant possibility, that a certain result may occur or that certain circumstances may
exist.” R.C. 2901.01(A)(8).
{¶ 14} According to the Ohio Supreme Court, “[t]he existence of the culpable
mental state of recklessness is an essential element of the crime of endangering children
* * *.” State v. McGee, 79 Ohio St.3d 193, 650 N.E.2d 975 (1997), syllabus. “A person
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acts recklessly when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause
a certain result or is likely to be of a certain nature.” R.C. 2901.22(C). A person is reckless
with respect to circumstances when, with indifference to the consequences, he or she
disregards an unjustifiable and substantial risk that such circumstances are likely to exist.
Id.{¶ 15} Based on the evidence presented at trial, we conclude that the elements of
endangering children were not met. Much of the trial testimony revolved around the living
conditions of Harvey’s apartment, which were described by Officer Russell Green and
Sgt. Muncy as “dirty and in disarray.” Sgt. Muncy told the trial court that there were diapers
and clothing on the floor and that he observed dirty dishes that were “dried and cruddy”
in the kitchen. And while Harvey admitted that she “always need[s] to clean,” the
photographs taken of the apartment were in no way shocking. Instead of depicting a
house in “disarray,” the photographs showed clutter in various rooms – clothes needing
to be picked up, bathroom counters needing to be de-cluttered, and dishes needing to be
washed – but it could not be said that the living conditions created a substantial risk to
the health or safety of the children as required by R.C. 2919.22(A).
{¶ 16} In its decision and entry, the trial court placed a great deal of emphasis on
Harvey’s admission that she smoked marijuana and on the bong found on the kitchen
counter, seemingly linking her marijuana use with her mental health issues. There is,
however, a problem with that conclusion: there was no causal link made at trial between
Harvey’s marijuana use and her suicidal thoughts. The closest thing to a nexus between
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the two was Sgt. Muncy’s testimony that Harvey told him she smoked to deal with stress,
and that was wholly insufficient. The presence of the bong was also of concern to the
State and the trial court, but its location on the kitchen counter militates against its creating
a substantial risk to the children because Harvey’s twins were only 11 months old at the
time of incident and could only crawl. There would have been no way for them to get to
the bong. Further, there was no testimony that Harvey smoked to impairment or that she
smoked in the presence of her children. In fact, the opposite was the case: Harvey
testified that she never used marijuana with the twins present. Additionally, the trial court
seemed to imply that Harvey endangered her children by using marijuana while
breastfeeding, and while transmitting THC to the children through breastmilk was a
potential danger, there was no evidence presented that that had occurred.
{¶ 17} Finally, the State urges us to consider Harvey’s threats of self-harm and
purported threats against her children as creating a substantial risk of harm to the health
and safety of children. However, there was no evidence that Harvey acted upon her
statements or otherwise engaged in conduct that threatened her children.
{¶ 18} Based on the record before us and viewing the evidence in the light most
favorable to the State, we cannot say that the elements of endangering children were
proven beyond a reasonable doubt. Harvey’s conviction was based on insufficient
evidence. Her assignment of error is sustained.
III. Conclusion
{¶ 19} Harvey’s conviction was not supported by the evidence, and the trial court’s
judgment of conviction will be vacated.
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TUCKER, P.J. and LEWIS, J., concur.
Copies sent to:
Christine L. Burk
Travis L. Kane
Miamisburg Municipal Court